When homosexuality had no place in the law

Claiming a psychological aversion to gay sex not always the best defence

Because for so long homosexuality was considered a criminal activity, it may be said that much of our history is criminal. Consequently, court and police documents are crucial primary source material for the historian.

The trouble with consulting these kinds of documents to obtain a picture of what things were like before, is that the resulting portrait is like a reflection in a fun house mirror: distorted and a little bit alarming.

Within living memory, Canadians could be arrested and, on the books at least, sent to prison for an indefinite period of time for having sex with someone of their own gender. How those charged with such a crime defended themselves is a fascinating story in its own right and constitutes an important chapter in the evolution of civil rights in Canada.

This month we shall look at the famous Boisvert/Lupien case which, as historian Gary Kinsman says, “became a much-cited legal case over the admissibility of psychiatric evidence.”

Jean Lupien was vice-president of Central Mortgage and Housing Corporation and deputy commissioner-general of Expo ’67. While visiting Vancouver, he was arrested on a charge of attempted gross indecency with a female impersonator, Serge Boisvert. Whereas the latter just pleaded guilty and was fined $100, Lupien went to court where he lost. His fine was $750.

Lupien appealed, and the British Columbia Court of Appeal ruled in his favour, ordering a new trial. The case eventually made its way to the Supreme Court of Canada, which found for the Crown.

In its ruling, the Supreme Court defined the legal issue to be determined in the appeal to be: “… the admissibility of psychiatric evidence tendered on behalf of the respondent, which the trial judge ruled was inadmissible, but which the majority of the Court of Appeal held to be admissible.”

The facts of the case were laid out to the Supremes in the following manner: “On February 3, 1967, in the early hours of the morning, the respondent was observed leaving a cabaret with a person dressed and made up as a woman and taking a taxi to a hotel where, after registering under a false name, the two went to a room.

“Police officers listened at the locked door for some minutes, heard male voices conversing in French, obtained the key for the room from the hotel clerk and entered. They found the respondent and the other person naked on a bed. They noticed that the other person was a male, still wearing the blond female wig and heavy facial makeup in which he had been seen earlier. The respondent seemed stunned after the entry and during the interview that then took place with the police officers.”

In the original trial, where the Crown Attorney wanted to know if Boisvert had an erection while making his statement to the arresting officers —and the answer is yes —Lupien claimed that “… he had believed his companion to be a woman.”

Lupien brought in psychiatric testimony that claimed he had a psychological aversion to homosexuality. But the trial judge excluded the psychiatric evidence, which was based on interviews and tests that were designed to show that Lupien would not have knowingly engaged in the homosexual practices that formed the subject of the charge.

Lupien and his lawyers may have chosen this particular line of defence, says lawyer Myron Plett, because there was “no place in the law at the time” for the idea that there might be an alternate sexual orientation.

“So, what I think they did was come at the problem from the perspective of intent —a basic component required to find criminal guilt. What if the person did not have the capacity to form the intent to do something criminal?

“Lupien was presumed to have the intent and he tried to offset that presumption by first claiming he had no idea the woman was a man and bolstering that with the psychiatric evidence that he would have been repulsed by the very thought of it.”

Lupien’s argument did not serve him well in Supreme Court. Justice Emmet Hall, writing the majority opinion, begins: “Homosexuality is not a disease of the mind, nor a mental illness, nor a condition arising out of mental incapacity or deficiency. It is a sexual attraction and interest between members of the same sex…

“[The homosexual’s] condition is an acquired aberration from the normal state. No one is destined at birth to be a homosexual any more than any given individual is earmarked to be an alcoholic or a drug addict.”

Although Justice Hall does go on to make the case for the admissibility of psychiatric evidence in cases dealing with homosexuality (“psychiatry has concerned itself in a special way with the study of homosexuality”), he concludes that “the evidence against the accused was overwhelming, and in my view the verdict would necessarily have been the same even if the jury had heard the opinion which… the psychiatrist… was prepared to give.”